By Matthew Santoni

Law360 (September 15, 2020, 6:44 PM EDT ) The U.S. Postal Service struck back at states suing to undo service changes before the November election, arguing to a Washington federal court Tuesday that they lacked standing to sue and that their concerns about delayed mail-in ballots were "speculative."

In a brief to U.S. District Judge Stanley A. Bastian, the Postal Service defended many of its recent changes — including some that were paused amid concerns about their perceived effect on the election — as necessary and normal parts of the agency's right-sizing and its attempts to send out more delivery trips on schedule, or as side effects of the COVID-19 pandemic.

Between arguing that the states' concerns were overblown and pointing to regulations that say the Postal Regulatory Commission and the Washington D.C. Circuit Court have exclusive jurisdiction over such complaints, the USPS said the court should not grant the proposed injunction to undo changes that have already been made.

"This case is now about plaintiffs' attempts to have this court oversee the day-to-day operations of USPS, based on a claim that courts have analogized to a 'Hail Mary,' to right wrongs that do not exist," the brief said. "Plaintiffs' legally deficient claims, arising from unsupported fears about the potential actions of USPS, do not warrant the extraordinary relief it seeks."

The current case, led by Washington Attorney General Bob Ferguson and including 14 states, was scheduled for a hearing in Washington State's Eastern District before Judge Bastian on Sept. 17. USPS said about a dozen similar cases had been filed around the country, including one led by New York state in D.C. District Court, and another led by Pennsylvania in that state's Eastern District.

The suits generally seek to stop and undo changes at the Postal Service that could reduce the volume or slow down the delivery of mail, including the decommissioning of sorting machines, the reduction in late or extra delivery trips, and the classification of ballots as anything other than first-class mail, given the anticipated flood of mail-in and absentee ballots for the November election due to the COVID-19 pandemic.

The states had accused Postmaster General Louis DeJoy, an appointee of and past donor to President Donald Trump, of using the changes to disenfranchise voters. But Tuesday's response claimed that many of the changes were in the works before DeJoy took office, and it implicated parts of the vote-by-mail process that were in control of the states and counties administering the elections, not the Postal Service.

"USPS's most significant operational concerns with respect to the election are those elements controlled by the states themselves, either through legislation or state and local election officials and voters," the Postal Service's brief said. "[The Office of Inspector General] identified ... several 'potential concerns' that may affect the smooth functioning of election mail (i.e. ballots mailed without tracking technology, ballot mailpiece design, election mail sent to voters too close to the election, varying state postmark requirements for ballots, and out-of-date voter addresses) — none of which are controlled by USPS."

The Postal Service said the delays were "speculative" and not affected by the reduction in sorting machines or late and extra delivery trips, and argued that states could mitigate their own fears about ballots being returned past voting deadlines by sending them out sooner or paying extra to have them be sent out as first-class mail. Such concerns did not rise to the level of a constitutional violation or an impediment to the states' rights to conduct their elections, it argued.

"While plaintiffs complain about the delay in election mail specifically, such an injury is entirely speculative, particularly considering the enormous efforts that USPS has put into place (and will continue or supplement through the election) in order to ensure that ballots are timely delivered," the brief said. "And to the extent those states are concerned, they are fully in control of the solution to that problem. Those states can mail their ballots to voters as early as possible to ensure that any fears about mail delays will not impact the election. Ballots returned by voters continue to be first-class mail and will be handled as such, and, in some cases, will be handled even more expeditiously."

While the states claimed the USPS' changes were made without properly going through a review process with the PRC, USPS countered that Congress had mandated that the PRC had exclusive jurisdiction over such disputes, with appeals of those decisions going to the D.C. Circuit. And the states could not seek "ultra vires" review — invoked where an agency had supposedly acted outside of its authority — by the district court because the USPS said the changes it made without the PRC's review were within its authority or are merely new efforts to adhere to existing initiatives.

"In their brief, plaintiffs focus on the fact that there was a delay in the mail, a delay which has now largely been corrected. But that, by itself, cannot be enough ... because any managerial change can be said to have the effect of changing the Postal Service's operations (i.e., changing how the mail is delivered)," the brief said. "If that is true, then nearly any managerial initiative would first need to go through an on-the-record proceeding. It cannot be true, for example, that the Postal Service would be required to seek an advisory opinion from a separate agency if it wanted to upgrade its IT or truck routing systems, even if those upgrades might have a temporary effect on its services (for better or worse in the short term)."

Representatives for the Postal Service and for the Washington attorney general's office did not immediately respond to comment Tuesday.

The states are represented by their respective attorneys general.

DeJoy, the Postal Service and other government defendants are represented by Alexis Echols and Joseph Borson of the U.S. Department of Justice's Civil Division.

The case is State of Washington et al. v. Trump et al., case number 1:20-cv-03127 in the U.S. District Court for the Eastern District of Washington.

--Editing by Adam LoBelia.

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